Opinion
Submitted October 16, 1900
Decided November 27, 1900
William P. Fiero for appellant. Frederick S. Barnum for respondent.
In May, 1867, the defendant made and delivered to the plaintiff his promissory note for four hundred dollars, payable one day after date, with interest at seven per cent.
On the 17th day of August, 1872, the United States District Court for the southern district of New York, sitting in bankruptcy, discharged the defendant from all debts and claims provable under the Bankrupt Act. This discharge covered the note in suit.
This action is based upon the theory that the defendant thereafter made a valid new promise to pay the note. After a jury trial a verdict was rendered against the defendant. The judgment entered upon this verdict for $1,105.33 has been affirmed by the Appellate Division in the second department, the presiding justice dissenting.
Two principal questions were discussed on this appeal: Has the defendant executed such a new promise in writing, signed by him, as to satisfy the statute (Chap. 324, Laws of 1882)? Assuming this question was not properly raised at the trial, can defendant's oral declarations, coupled with certain letters written by him, be regarded as constituting a new promise to pay this indebtedness?
As to the first question, the statute provides (Chap. 324, Laws of 1882): "That no subsequent or new promise hereafter made by any person duly discharged in bankruptcy to pay any debt so discharged in bankruptcy shall revive such debt against the person so discharged, unless such subsequent or new promise shall be contained in some writing signed by the person to be charged thereby."
The defendant's counsel insists that the motion made by him at the close of plaintiff's case and renewed when all the evidence was in is sufficient to raise the question of the statute. The motion is as follows: "I move for direction of a verdict in favor of the defendant upon the proofs. They have failed to prove a new promise, as required by law, or to prove any transaction on the part of the defendant that would make him responsible or liable to pay this debt, which was barred by the discharge in bankruptcy."
This motion, which insisted plaintiff had not proved a new promise as required by law, is broad enough to raise the question of the statute we have quoted, and, while it does not appear to have been discussed by the trial judge in his charge or in the opinion of the Appellate Division, must be regarded as in the case.
There was no attempt by the plaintiff to show a compliance with the statute on the part of defendant.
The new promise sought to be established rested in conversations between plaintiff and defendant and several letters written by defendant to plaintiff, which, standing by themselves, contained no promise in writing to pay the note discharged in bankruptcy.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., GRAY, MARTIN, VANN, CULLEN and WERNER, JJ., concur.
Judgment reversed, etc.